Director of Public Prosecutions v Moore
[2021] VSC 532
•1 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0043
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JESSIE CAITLYN MOORE | Accused |
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JUDGE: | Coghlan JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 August 2021 |
DATE OF SENTENCE: | 1 September 2021 |
CASE MAY BE CITED AS: | DPP v Moore |
MEDIUM NEUTRAL CITATION: | [2021] VSC 532 |
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CRIMINAL LAW — Sentence — Murder — Unprovoked attack on great aunt — Multiple blows to the head with a hammer — Relatively spontaneous offending — Lies to investigating police and creation of a false narrative — Bugmy considerations — Borderline intellectual functioning, recurrent depressive disorder with anxious distress, borderline personality disorder — Verdins principles applicable — Very early plea — Remorseful — Relatively young offender — Separation from young children — Prospects of rehabilitation — COVID-19 pandemic — Limited prior convictions not relevant to offending — Standard Sentencing offence — Sentence of 18 years, with non-parole period of 13 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Kristie Churchill | The Office of Public Prosecutions |
| For the Accused | Ms Sharon Lacy | Balmer & Associates |
HIS HONOUR:
Jessie Caitlyn Moore, on 11 March 2021 you pleaded guilty to the murder of your great aunt Karen Leek (‘Ms Leek’). In setting out the circumstances of your offending I have called heavily upon the Updated Plea Opening which was read to the Court by Ms Kristie Churchill, Crown Prosecutor, who appeared for the Director of Public Prosecutions on the plea.[1]
[1]The Updated Plea Opening was exhibit 1 on the plea.
Shortly before 7.00pm on Monday 25th May 2020, you were at the Ms Leek’s home. Ms Leek was or had been sitting in her reclining chair in the lounge room when you armed yourself with a hammer and struck her to the head and face with it at least 12 times, killing her. You then wrapped a plastic bag around her face, covering her eyes, nose and mouth, restricting her sight and breathing.
At that time, Ms Leek was the carer for your five year old daughter MA who was present in the home at the time of the murder. After killing Ms Leek, you left the house and took her keys, wallet and phone.
Background to the offending
Karen Dawn Leek was born on the 17th August 1950 and was 69 years old at the time of her death. She lived at her property in Cross Road, Devon Meadows where she trained and cared for greyhounds and was heavily involved in the industry.
Ms Leek originally lived at the Devon Meadows home with her mother. Sometime in early – mid 2018 her mother moved into a care facility. Seeking company, she allowed you and MA (who was around three years old at the time) to move into her home.
Initially the relationship between you and Ms Leek was good. However, you became involved in drug use and the relationship began to sour. In April 2019, as a result of your drug use, the Department of Health and Human Services (‘DHHS’) became involved with MA and you moved out of the home. MA went into the care of relatives. At about that time, there had been an altercation between you and Karen Leek which your grandfather David Leek ( Ms Leek’s brother) witnessed.
Several months after the April 2019 altercation between you and Ms Leek, you and MA returned to live with Ms Leek at Devon Meadows. You were then pregnant with your second child.
Ms Leek told the you that she would not be able to care for a newborn at that stage of her life. At this point, Ms Leek was largely caring for MA on her own with you leaving for long hours at a time. This was a constant source of tension, with Ms Leek often asking you to return home to care for your daughter.
Ms Leek was becoming increasingly frustrated with your behaviour and conduct towards her. She found out that you would lie, disappear and not assist with the care of your daughter.
The living situation had become untenable and you and your partner, Justin Carroll (‘Mr Carroll’) sought your own accommodation. On 22 May 2020, the two of you collected the keys to a property at Melzak Way in Berwick and commenced moving your belongings into the home.
However, you had been lying to Mr Carroll about your drug use, your restricted access to your child and the fact that you were living with Ms Leek. This presented a problem for you as your daughter was not allowed to live with you or have contact with Mr Carroll as per the interim accommodation order made by the Moorabbin Children’s Court on 19th May 2020, of which Mr Carroll was unaware.
Circumstances of the offending
On Sunday 24 May 2020, David Leek and Ms Leek spoke for about 30 minutes on the phone. During that call, Ms Leek told her brother that she wanted you gone from her home and she could not look after MA 24/7. Ms Leek told her brother that she had decided the best place for MA was with her grandmother Amanda (David’s daughter) and that she would contact DHHS in the morning.
By that stage, you had been manipulating your drug tests with DHHS and had decided to move out of the home at Devon Meadows and take MA with you.
Ms Leek phoned the Department of Human Services on 25 May 2020.
On Sunday 24 May 2020 you spent the night in your new home with your partner whilst MA remained with Ms Leek in Devon Meadows. You were expected to return to Ms Leek’s home to care for your daughter but instead sent a message to Ms Leek claiming to be too tired.
The next morning, 25 May 2020, you and Mr Carroll went to Fountain Gate Shopping Centre to visit a Vodafone store. Around 11.00am you dropped Mr Carroll at a friend’s place. You told Mr Carroll that you had a pre-natal appointment however you did not attend the appointment and instead returned to Ms Leek’s home where you remained for the day.
Ms Leek took MA to child care at around 10.30am that morning and then worked on her property before visiting a friend, Sophia Hili at around 1.00pm for coffee. During her visit with Ms Hili, Ms Leek told her that you had packed some clothes for MA and that she told you that you were not allowed to take MA with you to your new home. Ms Leek also spoke of the tension between the two of you over the Saturday and Sunday.
On the way to Ms Hili’s home, Ms Leek phoned her godson, Stephen Reed (‘Mr Reed’). During that call, she detailed to Mr Reed the argument the two of you had the day before regarding MA.
At 3.40pm, Ms Leek collected MA from child-care and returned to her home. At 5.20pm, she left home to go the bakery to collect bread before going to Coles and returning home at approximately 6.00pm.
Sometime after arriving home and before 7.00pm, Ms Leek went into her lounge and sat in her armchair in preparation for her nightly ritual of watching Home and Away. An argument developed between you and Ms Leek. It was loud enough to be overheard by MA who was in her room watching videos on an iPad. MA describes hearing swearing, yelling and screaming between you and Ms Leek.
During the argument, you retrieved a hammer while wearing rubber gloves, and attacked Ms Leek.
It is the prosecution case that at least initially, Ms Leek was seated in her armchair during the attack.
You struck her to the face and head with the hammer at least 12 times using a severe amount of force. A pathologist later described this as a conservative estimate of the number of blows. It is the prosecution case that at the time of inflicting the fatal wounds you intended to kill Ms Leek.
You then tied a plastic bag around Ms Leek’s face covering her eyes, nose and mouth which may have hampered her vision and breathing.
You then collected Ms Leek’s purse, wallet and keys and put them in another plastic bag. You put the hammer used to kill Ms Leek, her phone and rubber gloves in another plastic bag and grabbed MA and a few of her belongings before fleeing the house. You made no calls to emergency services.
CCTV captures your car driving north on Cross Road at 7.09pm, a short distance from Ms Leek’s home. Your returned to your new home where Mr Carroll was present and behaved as though nothing out of ordinary had happened.
On Tuesday 26 May 2020 at 5.50am, Mr Carroll left for work. On CCTV you can be seen to open the roller door to the garage and moving to and from the vehicle to the house. That appears to be when you moved the plastic bags containing Ms Leek’s personal items and the murder weapon from the car.
At 9.30am, you and MA went back to Ms Leek’s home in Devon Meadows. You arrived at about 10.09am. You left MA in the car and went inside to ‘discover’ your great-aunt’s body. You called 000 at 10.10am to report the ‘discovery’. The 000-operator attempted to talk you through assisting Ms Leek but you did not approach her body to offer any assistance.
Paramedics arrived at 10.21am due to the suspicious circumstances of the death they immediately requested the attendance of police. Police arrived at 10.35am and secured the scene. Acting Sergeant Barrow spoke to you. You told him that you had been there the day before but had left between 3.00pm and 3.30pm before coming back this morning and finding the sliding door open. You said you went in and called 000 straight away. You told police that you ‘wouldn’t have a clue’ who would hurt your great-aunt and that you knew that she ‘didn’t get along with some people at the best of times but not this’.
Crime Scene officers attended the scene and located Ms Leek lying on the floor of the lounge room in the entry way from the dining room. She had multiple injuries to her face and head on the left-hand side and apparent bruising on the back of her left hand. Her head was covered in blood and there was a pool of blood surrounding her head on the carpet. Her right forearm was covered in blood and hairs. A ‘Goliath’ brand plastic bag was wrapped around her head covering her face below the eyes and with the ends of the bag meeting behind her neck. The bag was twisted, crossed over and deformed near both ends, indicating they had been twisted together. The bag was blood stained. Other observations were made which are set out in Exhibit 1, the updated Summary of Prosecution Opening.
You were interviewed after being cautioned by investigators. You denied being involved at all. You lied about your relationship with Ms Leek and created a false narrative of events leading up to the murder.
Whilst you were being held in police custody, other officers searched your new home. Police seized clothing that you had been wearing on the day of the murder.
You were was released without charge later on the night of 26 May.
After the murder, during a clean out of the room that you occupied at Ms Leek’s home, a diary in which you had written was found. The diary reveals a hatred and animosity towards Ms Leek and other members of your family.
After police obtained DNA results, you were re-arrested you on 4 June 2020. On Sunday 7th June 2020, police received a phone call from Mr Carroll advising that he had found a suspicious bag in the children’s bedroom of his new home. Police attended the home and with permission, searched and seized a Big W reusable bag. Inside the Big W bag was a Goliath brand plastic bag containing the following:
(a) A small amount of dirt and leaf matter;
(b) Another plastic Goliath brand plastic bag containing:
(i) A metal hammer with blood staining;
(ii) A pair of green and yellow rubber gloves;
(iii) A mobile phone in a pink case;
(c) Two sets of car keys:
(i) One set belonging to Ms Leek’s Toyota Kluger;
(ii) One set belonging to Ms Leek’s Mercedes Van;
(d) A purse containing personal cards in Ms Leek’s name; and
(e) A dickies wallet containing cards and lapel pins.
Given the dirt and leaf matter, police searched the rear yard of the property and located a recently disturbed area at the rear of the property where it was believed that you originally hid the bag before bringing it inside the house.
Results of both DNA and fingerprints implicated you in the murder.
Post mortem
A post mortem was conducted on Ms Leek’s body on 27 May 2020 by Doctor Joanna Glengarry from the Victorian Institute of Forensic Medicine. The cause of death was determined to be ‘blunt force head injuries’.
As a result of the autopsy, Dr. Glengarry made the following comments:
(a) The autopsy demonstrated severe blunt force injuries to the head. There were bruising and abrasions around the left eye, and multiple lacerations in the region of the left ear, temple and across the left side of the head. There were abrasions of the left cheek and bruises of the left upper lip. There was bruising of the upper half of the left ear.
(b) Further, there was severe fracturing of the left side of the head (left frontal, temporal and parietal bones, skull base) and of the left side of the face (mandible and maxilla). The skull fractures were complex, involved multiple fragments of bone and were depressed fractures (fractures where the bones are pushed inwards towards the brain). Two of these had an oval, depressed shape (left front and occipital) and one (left parietal) had a curved outline.
Lastly, she reported that it was not possible to determine through autopsy whether or not the deceased was alive or dead when the bag was placed over her mouth but that the head injuries were more than sufficient to have caused death on their own.
Materials tendered on the plea
On the plea the following Victim Impact Statements were tendered and read to the Court by the prosecutor:
(a) David Leek (Brother);
(b) Geoffrey Leek (Brother);
(c) Asha Cahill (Great-niece);
(d) Kelly Brownfield (Great-niece);
(e) Angela Modra (Friend);
(f) Steven Reed (God son); and
(g) Sandra Reed (Friend).
The crime of murder is traumatic for victims but when the crime occurs within a family it is particularly so. When one family member murders another the grief for the whole family is heightened and often causes distress and conflict as appears to be the case here. None of us can place ourselves in the position of the victims but we can only do our best to appreciate their grief and hope that at least to some degree that their pain will be diminished as time goes on. I have taken the Victim Impact Statements into account.
On the plea the following documents were tendered on your behalf:
(a) Psychiatric Report dated 9 August 2021 prepared by Dr Danny Sullivan, Consultant Forensic Psychiatrist;
(b) Psychiatric report, dated 19 January 2021 prepared by Professor Anne Buist, Specialist Perinatal Psychiatrist, Austin Health;
(c) Psychological report, dated 13 July 2021 prepared by Ms Pamela Matthews, Forensic Psychologist;
(d) VOCAT Administration Orders, dated 23 September 2013 and 19 September 2014;
(e) Statement of Intellectual Disability (decided on 2 October 2012), dated 30 April 2021;
(f) Psychological assessment report, dated 17 May 2011 prepared by Mr Greg Bull, Educational and Developmental Psychologist; and
(g) Certificates relating to courses completed on remand.
Personal circumstances
You were born on 30 March 1995. You were aged 25 at the time of the murder and are now aged 26.
You are the eldest of six children. You have a sister, half-sister and two half-brothers. Your other half-brother was killed in a motor vehicle accident in October 2020. Your surviving half-siblings are the children of your mother and her partner Greg Carrigy, who has been your step-father for most of your life.
You were born in Ipswich, Queensland, to Darren Moore and Amanda Leek. Your family was then living in the small rural town of Boonah, about 45 minutes’ drive south of Ipswich. Your parents separated when you were about one.
When you were about three years old your mother moved to South Gippsland. Your mother commenced her relationship with Mr Carrigy when you were about four years old. Your family life was difficult and from the time you were eight DHHS became involved with the family. You were placed in out of home care with various family members including Ms Leek.
You reported to Ms Matthews that you were exposed to family violence including physical, verbal and financial abuse. Your relationship with your mother, who was believed to be bipolar, was often difficult and you played a protective and caring role in relation to your younger brothers and sisters. You told Professor Buist that you ‘felt hated, scared and unsafe’.[2]
[2]Report of Professor Anne Buist dated 19 January 2021, 2.
Your difficulties took on a public face when you went to school. You went to Nyora Primary School and Korumburra Secondary College. You were bullied and because of your circumstances at home, you found your experience at school as very difficult. You had the assistance of an educational aide up until grade six because you had been diagnosed with an intellectual disability. That support was not continued into High School because you were found to be in the borderline range. When you were re-assessed four years later you were found to have a mild intellectual disability which meant that you did qualify for support. It seems in fact that the distinction of whether you are just above or just below the line for intellectual disability continues to this day. It is not a distinction which will adversely influence the sentence I will impose on you.
When you attended Korumburra Secondary College, although you did not at first have supported assistance, you had the benefit of coming into contact with Nicole Fowler. Ms Fowler was originally an educational aid but later became the co-ordinator of the disability learning scheme and was part of the welfare programme at the school. She was directly responsible for your re-assessment. She gave evidence on the plea. She was an impressive and helpful witness. You still have her support. As well as being able to speak to your progress at school, she had significant dealings with you and your family, particularly your mother. You managed to complete the Victorian Certificate of Applied Learning (VCAL) to the Foundation Level which in turn, with the help of the school, enabled you to get employment at Subway where you worked for 2½ years. It took you three years to complete your VCAL and you remained at school until you were about 18.
Ms Fowler was also able to observe the difficulties which you were having at home. You were engaged in the Student Support Scheme where you were able to get support from psychologists and social workers. Ms Fowler observed instances of quite severe self-harm. She noted the involvement of DHHS and Berry Street. The school was actively involved in securing an Administration Order from VCAT in 2013 to protect your finances from the predatory behaviour of your mother.
Ultimately Ms Fowler described a situation which would readily meet the description of an entirely dysfunctional upbringing as the law understands that expression.[3] I will deal with the consequences of that finding later in these reasons.
[3]Bugmy v R (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160.
In addition to your employment at Subway in the two years leading up to your arrest you had been working as a self-employed gardener.
You have been involved in a number of relationships. Your first major relationship commenced when you were 15. It was with a twenty year old, you sometimes lived with him but also returned home. The relationship was abusive.
You were in other relationships, including a brief relationship with John Naylor, who is MA‘s father. MA was born 2015. You had just turned 20. Although the relationship lasted only three weeks Naylor continued to harass, threaten and stalk you. Over the last five years you have taken out several Family Violence Intervention Orders against him.
You had lived with your stepfather and half-brother James during the pregnancy.
At the time of the murder you were in a relationship with Mr Carroll and you had fallen pregnant in October 2019. Mr Carroll was violent and abusive to you. Ms Leek did not approve of the relationship and had observed injuries he had inflicted on you. As has already been observed, you had arranged a home together. He did not know of your recent drug use or of the Children’s Court prohibition against him having contact with MA or the requirement that you and MA reside with Ms Leek.
You were arrested on 4 June 2020 and your daughter MC was born the next day. She was removed from you a few hours later. You had hoped that she would be given back to you but that did not occur and it appears that she will be placed in the sole custody of her father Justin Carroll. You have had very limited access to her via Zoom and have regarded that as unsatisfactory and it may be that you will have very little contact with her in the future. Your daughter MA is in the care of your mother Amanda Leek. Your only access has been by Zoom or telephone. You work in the prison bakery seven days a week. You have the support of your aunt, Jackie Leek and Ms Fowler.
You had no contact with your father until you returned to Queensland to live with him when you were about 22 in 2017. Since the age of 15 you had been a binge drinker of alcohol but did not use alcohol in the months leading up the murder. Your father introduced you to ICE and you were smoking 12-16 points a day up until 22 May 2020. Ms Leek had expressed concern about your drug habit and that was one of the matters you were in dispute about.
You have two prior court appearances both in 2016 for intentionally damaging property (two charges), trespass, theft and obtaining financial advantage by deception. One set of charges was adjourned for one year and on the other charges you we fined without conviction. The offending does not appear to be serious and does not involve violence. It is of little or any relevance to the sentence I am called on to impose.
Psychological profile
Your psychiatric/psychological history and diagnosis is complex. Dr Danny Sullivan who had provided the report referred to above gave detailed and helpful evidence on the plea.
I set out the relevant part of Dr Sullivan’s report:[4]
[4]Report of Dr Danny Sullivan dated 9 August 2021.
Opinion and Recommendations
[100]Ms Moore is a 26 year-old woman charged with the murder of her great-aunt. Her background was of growing up with a mother with mental illness, and experiencing marked physical and emotional abuse. She exhibited learning and behavioural difficulties in school and was subject to teasing and bullying;
[101]Ms Moore was repeatedly assessed for intellectual disability in childhood and has been reassessed. Her scores have placed her either in the range of mild intellectual disability or just above the cut-off of IQ 70 which was previously used. The Diagnostic and Statistical Manual of Mental, 5th edition (DSM-5) has moved away from reliance on IQ scores, to relying on adaptive functioning to diagnose intellectual disability. On this basis, it is likely that Ms Moore is in the range of borderline intellectual functioning and this has a congenital origin. However, as evident in repeated previous testing, at times her scores are clearly within the range of intellectual disability, reflecting, in my opinion, that the influence of stress and mood disorder has a significantly detrimental effect on her functioning.
[102]I concur with Ms Mathews and Dr Evans that there is no overt evidence of autism spectrum disorder. She has not been formally tested for dyslexia but on the information available, it is most likely that her use of this term reflects non-specific literacy difficulties associated with borderline intellectual functioning rather than a specific language disorder.
[103]Ms Moore has a history of recurring mood disorder, with lowered mood and anxiety symptoms including past panic attacks. The appropriate diagnosis is of recurrent depressive disorder with anxious distress. At the time of my assessment this was in partial remission while on an extensive range of medications including antidepressant and mood stabilising medication.
[104]Ms Moore has experienced problems with substance use since her teens, including past (teenaged) alcohol abuse and more recent stimulant abuse. It is likely that in part these substances were used maladaptively to manage lowed mood, anxiety and poor self-esteem. These would have met a diagnosis of substance use disorder, mild or moderate in severity. She is currently abstinent in a controlled environment.
[105]There is no indication of bipolar affective disorder or psychotic illness.
[106]Ms Moore demonstrates clear features of borderline personality disorder, with labile mood, poor self-esteem, deliberate self-harm, and longstanding relational problems. She has often been highly dependent on others, such as her integration aide Nicola and partners. She is avoidant of conflict and copes with stress through denial. An alternative conceptualisation of this pattern of problems with identity, emotional regulation and interpersonal interactions is one of complex post-traumatic stress disorder: this reflects the effect of multiple adverse childhood experiences, inconsistent and abusive parenting, and developmental trauma on the development of a healthy and integrated personality.
[107]Ms Moore also exhibits features of post-traumatic stress disorder related to the killing of her great-aunt. She experiences emotional hyperarousal, abnormalities of memory about the offence, and ongoing re-experiencing in the form of nightmares and perceptions she associates with her great-aunt. These are mild-moderate in severity at present.
[108]At the time of the offence, Ms Moore was under significant stress, with the involvement of child protection and recent family law proceedings, a dependent relationship on a reportedly abusive partner, criticism from the victim (on whom she was dependent), pregnancy and recently ceased stimulant use.
[109]I consider that at the time of the offence, personality disorder and borderline intellectual functioning were causally relevant to the conflict with and her violence towards her great-aunt. Ms Moore’s history of poor coping skills and managing conflict through avoidance and denial led to increasing stress, while she concealed from her great-aunt an ongoing relationship of which Ms Leek had been critical.
[110]At the time of the killing, I consider that Ms Moore’s capacity to think clearly and make calm and rational choices was impaired to a moderate degree. This reflects that her borderline intellectual functioning and personality disorder both cause significant impairment of problem-solving and capacity to manage stress, in particular when associated with relational conflict. She has a longstanding tendency to react with maladaptive responses, including – variously – aggressive outbursts, self-harm, naïve and unhelpful denial of problems, avoidance of conflict and substance use. I do not, however, consider that there was evidence of disinhibition, impairment of judgment or reduced understanding of the wrongfulness of the conduct. Due to her poor recollection of events, I cannot determine if the intent of her conduct was impaired.
[111]I consider that incarceration will weigh more heavily on Ms Moore due to mental disorder. Firstly, incarceration appears to have been associated with the onset of labour and the delivery of her second child, who is not in her care, and with whom there is some reported indication of poor attachment. This is likely to perpetuate her distress and regret.
[112]Furthermore, she experiences ongoing features of clinically significant mood disorder, with lowered mood and anxiety symptoms Her progress in custody indicates that she has required extra support and careful consideration of placement, and that she periodically decompensates, with increased deliberate self-harm.
[113]Her poor coping reflects the impact of borderline personality disorder on emotional regulation and managing interpersonal interactions; it also reflects that her borderline intellectual functioning limits her resilience and coping at times of stress.
Although there are some differences in the opinions expressed by Dr Sullivan, Professor Buist and Ms Matthews, I am satisfied that those differences are sufficiently reconciled by Dr Sullivan in his report. On one view the reports of Professor Buist and Ms Mathews might be regarded as more favourable to you.
I am satisfied that there is a link between your offending and your psychiatric conditions. For these purposes I exclude your post-traumatic stress disorder arising from your offending.
I am also satisfied that your dysfunctional upbringing is also linked to your offending behaviour and it is probable that the two matters are inextricably linked in any event.
The law says that people who are suffering from impaired mental functioning which is causally linked to their offending is relevant to sentencing in at least the following ways:[5]
[5]R v Verdins & Ors (2007) 16 VR 269, [32].
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that was so, the condition affected the punishment that was just in all the circumstances; and denunciation was less likely to be a relevant sentencing objective.
When considering reduction of moral culpability it is necessary to have regard to the following:[6]
[6]Ibid, [26].
(a) Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(b) Impairing the offender’s ability to exercise appropriate judgment;
(c) Impairing the offender’s ability to make calm and rational choices, or to think clearly;
(d) Making the offender disinhibited;
(e) Impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(f) Obscuring the intent to commit the offence; or
(g) Contributing (causally) to the commission of the offence.
2.The condition could have a bearing on the kind of sentence that was imposed and the conditions in which it was to be served.
3.Whether general deterrence was to be moderated or eliminated as a sentencing consideration depended upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence was to be moderated or eliminated as a sentencing consideration likewise depended upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
6.Where there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this factor would tend to mitigate punishment.
When dealing with moral culpability it is pertinent to have regard to what Dr Sullivan said in paragraph [110] of his report and in evidence. It seemed to me that Dr Sullivan accepted that in his opinion, which he expressed in terms in his report, your ‘capacity to think clearly and make calm and rational choices was impaired to moderate degree’.[7] He attributed that incapacity to your borderline intellectual functioning and personality disorder. It follows that your moral culpability is reduced and the need for general and specific deterrence should be moderated.
[7]Above n 4, [110].
As I said earlier in these reasons, your dysfunctional and deprived upbringing also acts to reduce your moral culpability although it may mean that your prospects of rehabilitation are reduced.
It is clear from what Dr Sullivan has said that your borderline intellectual functioning and borderline personality disorder are linked together and related to your offending. In turn your borderline personality disorder is linked to your deprived upbringing.[8]
[8]Above n 4, [106].
Although both your mental impairment and dysfunctional childhood are to be taken into account when sentencing you, that is not necessarily in an arithmetic cumulative way, but they are nonetheless both important.[9]
[9]DPP v Herrmann [2021] VSCA 160, [55].
All the professional witnesses agree that because of your conditions your sentence will be more burdensome for you than for a prisoner without those conditions and I have taken that into account.
Mitigating circumstances
You are now separated from both of your daughters and will be separated from them for a substantial part of their formative years. It is possible that you will have little or no contact with your younger daughter MC. That separation from your daughters is a particularly heavy burden which you will have to bear.
You are relatively young and although when dealing with sentences of this length it is difficult to predict your prospects of rehabilitation, I accept that given your difficulties you have taken a reasonably positive approach to your detention, although you do still have a number of challenges. You are compliant with your medication. You work seven days a week and I received certificates relating to seven courses which you have completed. Although in a somewhat guarded way I accept that you do have prospects of rehabilitation, it is not possible to assess how strong those prospects are. I am satisfied that you have real prospects of overcoming your childhood deprivation. I do not regard you as a risk to the community and the protection of the community will play only a small part in your sentence.
It was submitted to me by Ms Sharon Lacy of counsel, who appeared on your behalf, that I should find that you are genuinely remorseful. That submission was based on your very early plea and what was observed by Professor Buist and Ms Matthews and what was said by Ms Matthews:[10]
Thus Ms Moore, in the writer’s opinion, is genuinely remorseful for murdering her aunt Ms Leek within the bounds of her cognitive and adaptive functioning.
[10]Report of Pamela Matthews dated 12 July 2021, 12.
You clearly regret what you have done and I am satisfied to the requisite standard that you are remorseful in the way described by Ms Matthews.
The utilitarian value of you early plea is significant and the value of it is enhanced by virtue of the fact that it has been entered during the present pandemic.[11] The pandemic itself makes the serving of your sentence more onerous, separate from the matters I have set out above, and I take both of those matters into account.
[11]Worboyes v R [2021] VSCA 169, [39].
Standard Sentence
The maximum sentence for the crime of murder is life imprisonment.
The offence is a standard sentencing offence and the standard sentence is 25 years. The Court of Appeal has set out the principles to be applied. They are:[12]
(a)The standard sentence is to be treated as a legislative guidepost.
(b)The scheme does not affect the ‘instinctive synthesis’ approach to sentencing.
(c)The scheme does not require or permit – ‘two stage sentencing’.
(d)The scheme does not otherwise effect the matters which the court may or must take into account when sentencing.
(e)The requirement to take into account only the objective factors applies to the assessment of the hypothetical ‘middle of the range offence’.
(f)The sentencing judge is still required to assess the seriousness of the subject offence that is not constrained by only a consideration of the objective factors.
[12]Peter Brown v The Queen (2019) 59 VR 462, [7].
Aggravating circumstances
It was submitted on behalf of the prosecution that I should find that this a serious example of the crime of murder. It was submitted that this was a particularly brutal and forceful attack with a weapon on an unarmed woman in her own home where she was entitled to feel safe. Your young child was nearby. The number of blows demonstrate that this was a sustained attack. The placing of the plastic hag across Ms Leek’s face was an additional abuse of her. You attempted to cover your involvement, you removed items from the scene and attempted to mislead the police.
It was submitted that I should find that Ms Leek was attacked whilst seated in her armchair. I would be satisfied on the balance that she was but I could not be satisfied beyond reasonable doubt.
To the matters of aggravation I would add Ms Leek had been generous to you and had provided a home for you and MA which prevented DHHS from taking more serious action. Your annoyance with Ms Leek was largely of your own making because you had made arrangements to move out of Ms Leek’s house without telling the truth to Mr Carroll and when there was still a Children’s Court order in place which prohibited that course.
The prosecution submits that your attack was sustained, which it was, however I accept that it began in a relatively spontaneous way and was largely a response to the almost impossible position in which you found yourself. Ms Leek was an entirely innocent victim.
Conclusion
I regard the objective seriousness of your offending as high. Apart from the fact that your offending was not premeditated, there is nothing about the circumstances which mitigates you behaviour.
I have had regard to sentences imposed in other cases to which the standard sentencing regime applies.
The objective seriousness of the offence is only one of the factors to be taken into account and matters I have set out above to be taken into account in your favour demonstrate what a complex task sentencing you is. I have had regard to the standard sentence. I have fixed a sentence which takes into account the seriousness of your offending and the very significant matters personal to you. That analysis leads me to impose a sentence less than the standard sentence.
I am obliged to have regard to denunciation, retribution, just punishment. specific and general deterrence. The effect of those general principles are modified in ways I have set out above.
I have taken into account the matters put on your behalf.
The non-parole period I will impose is in accordance with the statutory provisions.
For the murder of Karen Leek you are sentenced to imprisoned for 18 years and I fix a period of 13 years before you will be eligible for parole. I have fixed a relatively long period for which you might be on parole. I regard that period as being in your interests and the interests of the community.
I indicate that had you not pleaded guilty, I would have sentenced you to imprisoned for 22 years with a non-parole 18 years.
I declare that you have served 454 days by way of presentence detention.
I order that the above indication and declaration be entered in the records of the Court.
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